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Grindstaff v. Strickland

Court of Appeals of Arkansas, Division IV

November 29, 2017



          Rhoads Law Firm, by: Johnnie Emberton Rhoads, for appellant.

          Keith, Miller, Butler, Schneider & Pawlik, PLLC, by: Mason L. Boling, for appellee.


         Kimberly Strickland (now Grindstaff) and Joseph Strickland were divorced by order of the Circuit Court of Benton County on April 9, 2014. Ms. Grindstaff was granted custody of the two minor children, who were then six years old and ten months old. Mr. Strickland was given standard visitation and was ordered to pay child support, and the parties agreed to jointly decide "matters concerning the children: medical decisions, school and extracurricular activities." The order also included a non-cohabitation clause that stated in part, "Neither party . . . shall allow any third parties to co-habit in their residence or place of lodging while the child(ren) is present." Under an agreed order entered by the court on November 6, 2015, Ms. Grindstaff retained primary custody and was allowed to live in Springdale in the same residence with her new husband. The order specified details for visitation exchanges in Springdale and Siloam Springs, where she had previously lived.

         Mr. Strickland subsequently filed a petition for modification of custody, contempt, and reinstatement of the attorney ad litem. His petition included the following allegations of a material change in circumstances: (a) alienation by Ms. Grindstaff; (b) failure to permit Mr. Strickland's Father's Day visit in 2016; (c) failure to inform him of school activities; (d) requiring the school to notify her if he visited the minor children; (e) informing the school that he was not permitted to check out the children; (f) failure to list him as "father" on school paperwork; (g) suggesting that he "sign over his rights to the children"; (h) sending the children to their stepfather's automotive shop without proper care and permitting them to accompany him on repossessions and towing at accident scenes; and (i) residing in a home with as many as eight people, including an unmarried couple. The petition asked that Ms. Grindstaff be found in contempt for violations of court orders, which included failing to remove Mr. Strickland's name from car registration and to transfer insurance coverage pursuant to the divorce decree. Ms. Grindstaff filed an answer and a counter petition for contempt. She alleged that Mr. Strickland had failed to properly communicate with her regarding the children, to provide health insurance for the children when she lost her employment, and to provide an environment "conducive for a conversation" in her telephone visitation with the children; that he had permitted third parties to consume alcohol in the children's presence; and that he was $315.28 behind in child support.

         At the conclusion of the November 30, 2016 hearing on the petitions, the court orally ruled that the "cumulative effect" of the evidence constituted cause for an immediate change of custody. On the same date, the court entered a written order granting Mr. Strickland the immediate change of custody, eliminating the previous order's provision that the parties would jointly decide specific matters regarding the children, and setting child support and visitation for Ms. Grindstaff. The court found her in contempt, ordered her to pay attorney's fees and costs, and dismissed the contempt action against Mr. Strickland, finding that any contemptuous actions on his part had been "de minimis."

         Ms. Grindstaff now appeals. She contends that the trial court erred (1) in finding a material change of circumstances, (2) in finding that a change of custody was in the best interest of the children, and (3) in changing custody before using contempt powers to correct her contemptuous behavior. We affirm.

         A judicial award of custody will not be modified unless it is shown that there are changed conditions demonstrating that a modification of the decree will be in the best interest of the child, or when there is a showing of facts affecting the best interest of the child that were either not presented to, or not known by, the trial court when the original custody order was entered. Campbell, 336 Ark. at 383-84, 985 S.W.2d at 727. Generally, to promote stability and continuity in the life of the child and to discourage repeated litigation of issues that have already been decided, courts impose more stringent standards for modifications in custody than they do for initial determinations of custody. Id. at 384, 985 S.W.2d at 727. The party seeking modification has the burden of showing a material change in circumstances. Id.

         We review child-custody cases de novo, but we will not reverse a trial court's findings unless they are clearly erroneous. Taylor v. Taylor, 353 Ark. 69, 77, 110 S.W.3d 731, 735 (2003). Because the question of whether the trial court's findings are clearly erroneous turns largely on the credibility of the witnesses, we give special deference to the superior position of the trial court to evaluate the witnesses, their testimony, and the child's best interest. Sharp v. Keeler, 99 Ark.App. 42, 44, 256 S.W.3d 528, 529 (2007). There are no cases in which the superior position, ability, and opportunity of the trial court to observe the parties carry as great a weight as those involving minor children. Neumann v. Smith, 2016 Ark.App. 14, at 12, 480 S.W.3d 197, 204. If the trial court fails to make findings of fact about a change in circumstances, we may nonetheless conclude on de novo review that there was sufficient evidence from which the trial court could have found a change of circumstances. Williams v. Geren, 2015 Ark.App. 197, at 10, 458 S.W.3d 759, 766. We do so in this case.

         I. Whether the Trial Court Erred in Finding a Material Change of Circumstances

         Ms. Grindstaff first contends that the trial court erred in finding a material change of circumstances. She complains that the court "stated that it was the cumulative effect of the following actions on [her] part" that led the court to change custody: (1) asking Mr. Strickland to allow her husband to be present at one meeting with the parties and the children; (2) an inadequate job of notifying Mr. Strickland of the children's activities; (3) miserable communication between the parties; (4) one occasion of asking Mr. Strickland if he wanted to relinquish his parental rights; (5) refusing to give Mr. Strickland the business address of her husband's auto repair shop, where the children spent time; (6) admitting that the parties were making joint decisions almost 100 percent of the time; (7) cohabitation of a couple in her residence; and (8) incorrectly filling out school-registration forms. She relies on evidence at the November 2016 hearing that she asserts was in her favor on these points.

         On the first point, Ms. Grindstaff points to her testimony about "a single occurrence" when she had suggested that she, Mr. Strickland, and the children "talk about the future" following the November 2015 order-a meeting that did not happen because of the presence of her new husband. She explains that she had wanted his attendance, as well as that of Mr. Strickland's new wife, because "all four have responsibilities with the children." Next, she notes Mr. Strickland's testimony that he had not been notified of a dental appointment, where one of the children got a silver tooth, and that he had missed a field trip because of her failure to notify him. She states that she was working on her communication and that Mr. Strickland had acknowledged the recent improvement. She complains that a particular text from him was "as rude and disrespectful" as the ones that he complained about from her. She also argues that residing with the cohabitating couple, her father-in-law and Diane McGraw, is not a material change in circumstances because she had been residing with them at the time of the previous order and because Mr. Strickland had not objected then. She points to her and Ms. McGraw's undisputed testimony that at the time of the previous custody order, Ms. Grindstaff had married and moved to Springdale with her husband, and she and the children "were residing in the home of a 70-year-old unmarried couple."

         Mr. Strickland responds that there was conflicting testimony on the points listed by Ms. Grindstaff and that the trial court properly identified a number of factors showing a material change in circumstances. He argues that the crux of these factors was that Ms. Grindstaff had done a "miserable job" communicating ...

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